Time for an Equal Rights Amendment

In response to recent threats to women’s rights, organizers have brought a revived fight for gender equality to the courts, the legislatures and the streets — but we haven’t heard much about the equal rights amendment. The ERA, which would create a constitutional right to sex equality, was introduced more than 90 years ago, and it has been more than 40 years since Congress passed the amendment — but it fell just three votes short of the required 38 states when its deadline for passage came and went. The conventional wisdom now is that the ERA, a topic of live debate for decades, today is dead for good. After all, since the 1970s we’ve seen some significant progress, from the Pregnancy Discrimination Act to the Violence Against Women Act. Isn’t the ERA unnecessary and, as longtime ERA opponent Phyllis Schlafly put it in 2007, “very retro”?

Absolutely not.

Story Continued Below

Last week, Rep. Carolyn Maloney (D-N.Y.) and Rep. Jackie Speier (D-Calif.) stood outside the Supreme Court to call anew for a constitutional right to sex equality “Equal means equal,” Maloney said. “Not in rhetoric, but in the Constitution of the United States for women and men.”

Amending the Constitution is no easy task — it hasn’t happened in 22 years — but Maloney and Speier are right on: Now more than ever a new movement for the ERA is urgently needed. The Constitution in 2014 still does not so much as mention sex, while women around the country face conservative legislation and Supreme Court decisions — most recently in the Hobby Lobby case — that increasingly impose severe infringements on their rights. An ERA, in requiring courts to probe more deeply into legislation that classifies on the basis of sex, would help to expose the stereotyping and sexist logic lying beneath the surface of many of our federal laws.

Current protections under the Equal Protection Clause of the 14th Amendment aren’t enough to protect women’s opportunities and autonomy from those who wish to restrict them. Since the Supreme Court began to hear sex discrimination suits, it has systematically invoked stereotypes and vague notions of biological difference to dismiss these claims, arguing that men and women are inherently different — and so can be treated differently, too. In the 2001 case Nguyen v. INS, for example, the court held that laws can treat mothers and fathers differently based on a belief that women “naturally” have a closer relationship to their children. The Constitution’s lack of explicit concern for sex equality may also be blamed for recent decisions that gloss over sex equality arguments, including the recent ruling in Hobby Lobby that “closely held” corporations can refuse to cover contraceptives for their employees, and the 2000 decision in U.S. v. Morrison, which rejected the original Violence Against Women Act’s private federal right of action for gender-based violence.

Legal experts have argued that these judgments are incorrect even under current law, but the absence of an ERA certainly opens up more space for judges to shrug off sex inequality. Right now, gender discrimination is subject only to “intermediate scrutiny” under the 14th Amendment, meaning that a law that treats men and women differently only needs a moderately convincing justification to pass muster. For example, in the 1981 case of Rostker v. Goldberg, the Supreme Court upheld a congressionally mandated military recruitment policy that discriminated based on sex, despite a weak rationale that the military (and even Bernard Rostker, the named defendant and director of the Selective Service System) renounced. Intermediate scrutiny, the court explained, meant that Congress did not need a particularly compelling reason to pass a law that discriminated against one sex — it just needed a halfway decent one.